American Tower, LLC

Plain-English summary

American Tower had erected a radio tower for the Township of Verona, New Jersey. After an OSHA inspection prompted by an injury complaint, the company received a citation alleging serious violations. Its owner orally disagreed with the citation and later said he believed he had contested it, but no written notice was filed during the 15-working-day period. The judge found that both the compliance officer and the citation clearly explained the written-filing requirement, and that the owner's failure to coordinate with the company's chief executive was not excusable neglect. The late notice was dismissed, leaving the citation and penalty final in all respects.

Decision snapshot

• Cited standard(s): 29 U.S.C. § 659(a)
• Outcome: Procedural. The late notice of contest was dismissed, and the citation and penalty remained affirmed.
• Key point: Oral disagreement with an OSHA citation does not replace the written notice of contest required within 15 working days.

Full text (OSHRC public release)

                                United States of America
               OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                           1120 20th Street, N.W., Ninth Floor
                              Washington, DC 20036-3419


SECRETARY OF LABOR,                            :
                                               :
                 Complainant,                  :
                                               :
          v.                                   :               OSHRC DOCKET NO. 99-1197
                                               :
AMERICAN TOWER, LLC,                           :
                                               :
                 Respondent.                   :

Appearances:

                 John S. Ho, Esquire                           Kevin J. Conyngham, Esquire
                 New York, New York                            Saddle Brook, New Jersey
                 For the Secretary.                            For the Respondent.

Before:          Chief Judge Irving Sommer

                                     DECISION AND ORDER

          This proceeding is before the Occupational Safety and Health Review Commission (“the
Commission”) pursuant to section 10 of the Occupational Safety and Health Act of 1970, 29 U.S.C.
§ 651 et seq. (“the Act”), for the purpose of determining whether the Secretary’s motion to dismiss
Respondent’s notice of contest as untimely should be granted.
          On February 18, 1999, the Occupational Safety and Health Administration (“OSHA”)
inspected a site in Verona, New Jersey, where Respondent had erected a radio tower for the
Township of Verona.1 As a result of the inspection, OSHA issued Respondent a citation and
notification of penalty alleging serious violations of the Act. Section 10(a) of the Act requires an
employer to notify OSHA of the intent to contest a citation within 15 working days of receiving it,
and the failure to file a timely notice of contest results in the citation and penalty becoming a final
judgment of the Commission by operation of law. The record shows that OSHA mailed the citation


          1
       Although Respondent had finished erecting the tower several months before, OSHA
conducted its inspection due to a complaint about an injury that had occurred on the job.
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by certified mail, that Respondent received it on February 26, 1999, and that the notice of contest
period ended on March 19, 1999. The record also shows that Respondent did not file a notice of
contest until July 7, 1999.2 The Secretary filed her motion to dismiss on September 1, 1999, and the
hearing in this matter was held in New York, New York on January 11, 2000. The parties have filed
post-hearing submissions setting out their respective positions.
                                              Discussion
        The record plainly shows that Respondent did not file its notice of contest until after the 15-
day contest period had ended. An otherwise untimely notice of contest may be accepted where the
Secretary’s deception or failure to follow proper procedures caused the delay in filing. An employer
is also entitled to relief if it shows the Commission’s final order was entered as a result of “mistake,
inadvertence, surprise, or excusable neglect” or “any other reason justifying relief,” including
mitigating circumstances such as absence, illness or a disability that would prevent a party from
protecting its interests. See Fed. R. Civ. P. 60(b); Branciforte Builders, Inc., 9 BNA OSHC 2113
(No. 80-1920, 1981). There is no evidence and no contention that the Secretary was deceptive or
failed to follow proper procedures in this matter. Respondent contends, rather, that the late filing
should be deemed excusable neglect under the circumstances.
        John Rhodes, the OSHA compliance officer (“CO”) who inspected the site, appeared and
testified at the hearing. He said he held the opening and closing conferences during a single phone
conversation on February 24, 1999, with Charles Simone, the owner of Tower Construction; he also
said that after identifying himself and discussing the matter, he advised Simone that a citation would
be issued and that if he wanted to contest it he would need to file a notice of contest in writing within
15 working days of receiving it.3 The CO noted that Simone was unhappy about the citation and
disagreed with it, but he did not recall Simone stating that he contested it. (Tr. 26-32; 36-39; 66).


        2
         Respondent’s counsel sent an identical notice of contest letter to the Commission by Federal
Express on April 8, 1999, but the letter was returned as undeliverable, evidently due to the fact that
OSHA had provided an incorrect address for the Commission. However, it is clear from the record
that no representative of Respondent contacted OSHA or filed a notice of contest at any time during
the 15-day contest period. (Tr. 15-18; 24; 28-29; 55-56; 61-62).
        3
        The record shows that while the CO had inspected the site on February 18, 1999, he had not
been able to reach the employer until February 24, 1999. (Tr. 20-22).
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        Charles Simone also appeared and testified at the hearing. According to his testimony, he told
the CO during their February 24 phone conversation that he disagreed with the citation, that he was
contesting it, and that he would seek counsel in that regard. Simone initially indicated that the CO
had not informed him that the notice of contest had to be in writing, but he later conceded that the
CO had in fact advised him that this was the case. Simone also indicated that he had told Wendy
Kanarr, the company’s CEO, that he had contested the citation and that she should seek legal counsel
in the matter; he stated that Kanarr would have been responsible for sending in the notice of contest,
but he noted that in view of what he told her she had probably believed he had already filed one.
Simone said he had owned his company for five years but that it was a small business and he had
never been cited by OSHA before; he also said that he had read the citation when he received it,
including the “Right to Contest” paragraph, and then given it to Kanarr. (Tr. 40-63).
        The citation issued to Respondent explains the 15-day contest period, in the first paragraph
on the first page, as follows:
        You must abate the violations referred to in this Citation by the dates listed and pay
        the penalties proposed, unless within 15 working days ... from your receipt of this
        Citation and Notification of Penalty you mail a notice of contest to the U.S.
        Department of Labor Area Office at the address shown above. Please refer to the
        enclosed booklet (OSHA 3000) which outlines your rights and responsibilities and
        which should be read in conjunction with this form.
        The citation further explains the contest period, on page 2, as follows:
        Right to Contest - You have the right to contest this Citation and Notification of
        Penalty. You may contest all citation items or only individual items. You may also
        contest proposed penalties and/or abatement dates without contesting the underlying
        violations. Unless you inform the Area Director in writing that you intend to
        contest the citation(s) and/or proposed penalty(ies) within 15 working days after
        receipt, the citation(s) and the proposed penalty(ies) will become a final order
        of the Occupational Safety and Health Review Commission and may not be
        reviewed by any court or agency.
        Besides the citation itself, the OSHA 3000 pamphlet that was mailed along with the citation
reiterates the filing requirement. (Tr. 11-13). Specifically, in the first paragraph on page 11 (entitled
“How Do You Contest Citations?”), the pamphlet states that:
        If you wish to contest any portion of your citation, a Notice of Intent to Contest must
        be submitted in writing within 15 working days after receipt of the Citation and
        Notification of Penalty even if you have orally stated your disagreement with a
                                                   4

        citation, penalty, or abatement date during a telephone conversation or an Informal
        Conference.
        The Commission has held that the OSHA citation plainly states the requirement to file a
notice of contest within the prescribed period and that an employer “must bear the burden of its own
lack of diligence in failing to carefully read and act upon the information contained in the citations.”
Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989); Acrom Constr. Serv., Inc., 15 BNA
OSHC 1123, 1126 (No. 88-2291, 1991). The Commission has also held that ignorance of procedural
rules does not constitute “excusable neglect” and that mere carelessness or negligence, even by a
layman, does not justify relief. Acrom Constr. Serv., Inc., 15 BNA OSHC 1123, 1126 (No. 88-2291,
1991); Keefe Earth Boring Co., 14 BNA OSHC 2187, 2192 (No. 88-2521, 1991). Finally, the
Commission has held that Rule 60(b) cannot be invoked “to give relief to a party who has chosen
a course of action which in retrospect appears unfortunate or where error or miscalculation is
traceable really to a lack of care.” Roy Kay, Inc., 13 BNA OSHC 2021, 2022 (No. 88-1748, 1989).
        On the basis of the record and the foregoing Commission precedent, the untimely filing of
the notice of contest in this case was not a result of excusable neglect. The CO testified that he
advised Simone that the notice of contest had to be in writing, and Simone conceded this was the
case; Simone also conceded that he had read the citation, which, as noted above, “plainly states the
requirement to file a notice of contest within the prescribed period.” (Tr. 27-29; 38-39; 49-52; 58).
In addition, Simone’s testimony indicates that he passed the citation on to Kanarr, who, as the
company’s CEO, was responsible for such matters. (Tr. 42; 50-51; 59-63). In view of the evidence,
it is my conclusion that the late filing of the notice of contest was due to the failure of both Simone
and Kanarr to carefully read and act upon the information in the citation; Simone and Kanarr also
apparently failed to read the OSHA 3000 pamphlet that was included with the citation. In so
concluding, I have considered Merritt Elec. Co., 9 BNA OSHC 2088 (No. 77-3772, 1981), the case
cited by Respondent. However, the late-filed contest in that case was deemed timely because of
misleading remarks made by an OSHA official in regard to the filing requirement, which did not
occur here. I have also noted that Respondent is a small company, that this was its first experience
with OSHA, and that when it became aware that no notice of contest had been filed it attempted to
submit one on April 8, 1999, as discussed above. (Tr. 51; 62-64). Although I am sympathetic to
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Respondent’s plight, I am constrained by the circumstances of this case and the Commission
precedent set out supra to find that Respondent is not entitled to relief pursuant to Rule 60(b). The
Secretary’s motion to dismiss is accordingly GRANTED, Respondent’s notice of contest is
DISMISSED, and the citation and notification of penalty is AFFIRMED in all respects.
       So ORDERED.




                                                      /s/
                                                      Irving Sommer
                                                      Chief Judge

Date: 20 MAR 2000